SSR 87-17 (Rescinded)
To clarify 20 CFR 404.820(b) to show that when an individual requests a revision of his or her earnings record, it is his or her responsibility to present sufficient evidence to SSA to establish that the record may not be accurate and to clarify 20 CFR 422.125(f) to show what investigative steps SSA will take based on that evidence.
Section 205(c)(3)-205(c)(5)(J) of the Social Security Act; Regulations No. 4, sections 404.802, 404.820-404.823; Regulations No. 22, section 422.125(f).
Section 205(c)(3) of the Social Security Act (the Act) provides that the Secretary's record shall be evidence of the amounts of wages paid to, and self-employment income derived by, an individual and of the periods to which such wages were paid and such income was derived. The absence of an entry in such record as to wages alleged to have been paid to, or as to self-employment income alleged to have been derived by, an individual in any period shall be evidence that no such alleged wages were paid to, or that no such alleged income was derived by, such individual during such period.
Section 205(c)(4) of the Act provides that, within the time limitation of 3 years, 3 months, 15 days after the year in which wages were paid or self-employment income derived, an individual's earnings record ordinarily may be corrected. After the time limitation, section 205(c)(4)(A) of the Act provides that the Secretary's records of the amounts of wages paid to, and self-employment income derived by, an individual during any period in such year shall be conclusive for the purpose of this title; section 205(c)(4)(B) provides that the absence of an entry in the Secretary's records as to the wages alleged to have been paid by an employer to an individual during any period in such year shall be presumptive evidence that no such wages were paid to such individual in such period; and section 205(c)(4)(C) provides that the absence of an entry in the Secretary's records as to the self-employment income alleged to have been derived by an individual in such year shall be conclusive that no such alleged self-employment income was derived in such year unless it is shown that he or she filed a tax return of his or her self-employment income for such year before the expiration of the time limitation following such year, in which case the Secretary shall include in his records the self-employment income of such individual for such year.
Section 205(c)(5) of the Act provides for those situations when the Secretary may change or delete any entry or include any omitted item on an earnings record after the expiration of the time limitation.
20 CFR 422.125(f) provides that if an individual disagrees with a statement of earnings credited to his or her Social Security record, he or she may request a revision. 20 CFR 404.820(b)(4) states that a request should describe or have attached to it any available evidence that shows that the earnings record is incorrect. 20 CFR 404.821 and 404.822 provide for corrections to be made to an individual's earning record ". . . if satisfactory evidence shows SSA records are incorrect. . . ."
When an individual asks for correction of his or her earnings record, it is that person's responsibility to provide evidence to the Social Security Administration (SSA) to support the allegation that the record is incorrect. This evidence must be sufficient to raise a reasonable doubt about the correctness of the individual's earnings record. (The Secretary is entitled to rely on the presumption provided in the Act that the earnings record he or she maintains is correct if there is no satisfactory evidence showing that the record is incorrect.) Such evidence may consist of:
A form W-2 (Withholding Tax Statement) or W-2C (Statement of Corrected Income and Tax Amounts);
A statement signed by the employer or signed by the custodian of the employer's records; or
In cases of alleged self-employment income, a copy of Form 1040, Schedules C, F, and SD, and proof that the return was filed within 3 years, 3 months and 15 days of the end of the taxable year at issue.
Items 1, 2, and 3 are considered primary (preferred) evidence. If the individual provides a reasonable explanation as to why preferred evidence is not available, then the following types of secondary evidence may be provided:
Pay envelopes, vouchers, and similar unsigned employer wage statements to the individual, a State agency, or Federal agency;
Award letters or other notices provided the individual by a State Unemployment Compensation Agency based on information provided the Agency other than an employer's records;
Union record of dues and wages paid the individual; and/or
An individual's copy of Federal, State, or local income tax returns.
Items 4-7 are considered secondary evidence of high probative value. The individual should submit primary evidence if it is at all possible to do so; if not, he or she should provide (1) a reasonable explanation of why it is not available and (2) secondary evidence with the request for correction. If secondary evidence is also unavailable, the individual should provide a reasonable explanation of why it is not available. He or she should include, in that case, any evidence that can be produced (for example: personal records or account books; signed statements of coworkers or others who have first-hand knowledge about the wages paid or the self-employment income received).
If a request for correction is received that does not include satisfactory evidence or a reasonable explanation as to why neither primary or secondary evidence is available, SSA will begin its investigation by requesting such evidence from the individual. The individual will be informed that it is his or her responsibility to provide preferred evidence if it is available. He or she will be advised concerning what constitutes primary and secondary evidence and what to do if neither can be obtained. The individual will generally be responsible for providing the evidence within 30 days of SSA's initial request. If no response is received within 30 days, the individual will be given written notice by SSA that he or she has 15 days to submit the evidence or to provide a reasonable explanation of why it is not available.
If the individual does not respond to the second request, SSA will conclude its investigation and deny the request to correct the earnings record. If the individual responds and alleges that he or she will be able to provide evidence within 30 days after the end of the time limitation, a 30-day extension will be granted.
An explanation of why primary and/or secondary evidence is not available will be considered reasonable by SSA if:
The individual alleges that there are more earnings or self-employment income posted to his or her earnings record that there should be and signs a statement disclaiming the excess earnings (this usually occurs when another person's earnings have been erroneously reported to the individual's record);
The individual provides a credible reason for the unavailability of the evidence and establishes that he or she has made reasonable efforts to obtain evidence without success.
Example: There is reason to believe that employer records are or should be available, the individual provides a copy of a letter sent to the employer requesting evidence, and the employer either failed to respond or refused to provide evidence.
In these cases, SSA will attempt to contact the employer and request the evidence. If necessary, SSA may subpoena the employer records;
The individual provides a credible reason for the unavailability of the evidence; makes a credible assertion that the earnings were covered under Social Security; and establishes that the employer cannot provide evidence.
Example: The individual provides a letter or statement from the employer stating that the individual did work (or could have worked) for the employer during the year(s) in question but the records have since been destroyed.
In these cases, the individual must provide: the employer's name and location (city and State), the period involved, and the approximate amount of earnings.
In the last two cases (i.e., the individual has established that the employer will not or cannot provide evidence), SSA records will be checked to determine whether they show that the employer filed a Social Security wage report for the period in question. If a wage report was filed, SSA will make a special search of its "Suspense File." This file contains earnings items reported under an invalid Social Security number or wrong name that have not yet been credited to any individual's earnings record. SSA will, upon completion of this search, determine if the individual's earnings appear in the Suspense File and if so, take the necessary action to allocate the earnings to the individual's earnings record. SSA will conduct this special search only if all other means of obtaining evidence have been exhausted.
The individual makes a credible assertion that earnings will not be reported and this fact cannot be verified because the earnings in question are for a "lag" period (i.e., the earnings are for the calendar year preceding the year the request is made and they may not have been posted to SSA's records yet).
Example: The individual requests correction of 1986 earnings in April 1987 and asserts that either the employer did not ask for the employee's Social Security number, the employer did not withhold Social Security taxes, or the employer did not provide the individual a form W-2.
In these cases, SSA will contact the employer to request primary evidence, when necessary, and will take other steps, if appropriate, to pursue the investigation. (Note: If the individual believes his or her current year's earnings will not be reported, the individual will be advised to file a correction request the following February, if a W-2 is not received in January.);
The individual provides a credible reason for the unavailability of the evidence and alleges that agricultural wages were paid to him or her for migrant farm work and that the employer did not file Social Security wage reports.
Example: The individual (a migrant farm worker) did not receive (or did not retain) any evidence of his or her earnings because of frequent changes of residence or failure to understand the importance of the documents and asserts that either the employer did not ask for the employee's Social Security number, the employer did not withhold Social Security taxes, or the employer did not provide the individual a form W-2.
In these cases, SSA will assist the individual to obtain evidence sufficient to make a determination, including as necessary evidence needed to determine: the identity of the employer (between a crew leader or the farm owner), whether the amounts paid constitute wages, and the amounts of wages paid and dates of employment. When the migrant worker has no documentary evidence of amounts paid and dates of employment, SSA will assist in obtaining signed statements from fellow migrant workers and any other person(s), including a family member, who has actual knowledge (not hearsay) of the individual's employment.
In all cases where an individual requests correction of an earnings record, a decision to grant or deny the request will be made only after reviewing all the evidence submitted by the individual or developed by SSA during its investigation. The initial determination, which may be appealed by the individual, will be made on the basis of the available information, generally within 3 years of the date the request is filed, and in no event later than 3 years, 3 months, and 15 days from that date.
Program Operations Manual System, Sections RM 03870.004, RM 03870.008, RM 03870.072, RS 01403.253
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